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Sunday – January 28, 2018

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Foreclosure Workshop #53: Validity Versus Finality — The New Frontier in Foreclosure Defense

State and Federal Courts in recent years have begun the inevitable rethinking and setting aside of prior judicial preedents that have otherwise resulted in the protection of mortgage fraud in the United States since the Mortgage Crisis of 2008.

As a result of such new judicial thinking, tension and friction and conflict have arisen regarding the attempted use of such new case precedent to collaterally attack past adverse foreclosure decisions that have resulted in tens of millions of foreclosures, the vast majority of which have arguably had questionable validity, especially when judged by more recent jurisdictional and evidentiary standards.

That welcome awakening has placed foreclosure defense squarely therefore within one of the most complex of all legal doctrinal controversies: VALIDITY versus FINALITY — the new frontier in foreclosure defense.

In English common law, a past decision’s VALIDITY was much more important than maintaining FINALITY.

That view was adopted in the United States in the landmark 1877 decision of the United States Supreme Court in Pennoyer v. Neff, declaring that a judgment “if void when rendered, will always remain void.”

Yet the Court backed away from that principle in later decisions, until Justice Black in Hazel-Atlas Glass Co. v. Hartford-Empire Co. in 1944 held that there was no time limit in setting aside a final judgment due to it having been procured by fraud on the court, yet that precedent has also been substantially limited by lower federal courts today.

The conceptual protectors of FINALITY overriding VALIDITY, the refusal to allow the reopening of prior judicial decisions even if, for instance, you have conclusive evidence that a prior foreclosing plaintiff did not own your mortgage debt or that the prior court lacked jurisdiction, are such doctrinal giants of status quo theology as: Res Judicata, Rooker-Feldman, Statute of Limitations, Waiver, Laches, Stare Decisis, Prospective Application, Detrimental Reliance, and Full Faith and Credit, depending upon the jurisdiction that you happen to be in and the timing and procedural status of your individual case.

The conceptual protectors of VALIDITY overriding FINALITY, on the other hand, the willingness to allow the reopening of prior judicial decisions where, for instance, you have conclusive evidence that a prior foreclosing plaintiff did not own your mortgage debt or the prior court lacked jurisdiction, are such doctrinal giants of change theology as: Fraud, Illegality, Nullification, Retroactivity, Estoppel, Supervening Authority, Equity, and Public Policy.

Yet all of the above competing doctrines, or what we have called on our show “Rule Statements,” are not “triggers of thought,” but the “conclusions of thought,” as those listeners that have heard our past shows on “The Rule Ritual” well understand.

It is the purposeful goals underlying such doctrines or “Rule Statements” that when applied to the actual facts of each case will or should determine the outcome.

In fact, understanding the underlying triggers of thought behind championing VALIDITY or FINALITY over one another, once correctly understood, harmonize these otherwise seemingly contradictory “Rule Statements.”

The best way to understand this new frontier in foreclosure defense is to analyze specific foreclosure defense situations, which will we do on today’s show, in some of the most significant existing case contexts.

A full understanding of how the tension, friction, and conflict between VALIDITY and FINALITY can be intelligently resolved in individual foreclosure cases will aid our listeners in arguing future individual foreclosure cases on the side of VALIDITY, and Judges to intelligently do Justice.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

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